Food Patents and Trade Secrets

Food Patents and Trade Secrets

There are many major companies that consider the security of their dishes to be of utmost importance, hiding away recipe copies in safes and even only telling one or two people the entire process of how to make the dish. Perhaps you have made something while attending cooking schools online that you’d like to own the rights to and covet for generations. Ever thought about getting a patent or legally preserving the idea as a trade secret? Here’s what you need to know:

Food patents
According to the U.S. Patent and Trademark Office June 2013 issue of Inventors Eye, food patenting is very difficult. In order to earn a patent, something must be new and useful. Yes, technically foods can be patented, but for something to be patented it must be nonobvious and original. People have been combining and eating food for a long time, which makes it difficult to create a truly original dish. Instead of seeking a patent, many companies will opt to have their dish marked as a “trade secret.”

Trade secrets
Trade secrets are considered to be the fourth kind of intellectual property (the other three are copyrights, trademarks and patents). According to How Stuff Works, trade secret must be used in business as an advantage over competitors who don’t use or know it. Trade secrets may be patterns, compilations, formulas, devices, methods, processes, techniques or programs. Nations that are a part of the World Trade Organization and belong to the Trade Related Aspects of Intellectual-Property Rights Agreement must honor the trade secrets of people and companies from other WTO TRIP nations.

Coca-Cola holds a popular trade secret: the recipe for Coke. According to CNN, in 2007 two former Coca-Cola employees were sentenced to prison for attempting to sell the recipe for a new product and highly restricted, confidential information about current products to the company’s biggest rival, Pepsi. Pepsi employees tipped off the FBI, which ran a sting operation and caught the two, eventually charging them with conspiracy and wire fraud, which cost the individuals $40,000 each in restitution and 5-8 years in prison.

Other highly sought-after trade secrets include the methodology behind the New York Times’s Best-Seller List, the process of making a Twinkie, the ingredients in Big Mac Special Sauce and KFC’s coveted chicken recipe.

With a patent, there is no need for secrecy because the ingredients or processes are known to the world. Trade secrets, however, are heavily guarded, and if the secret gets out, the protection is not guaranteed.